Aug 5, 2018 5 min read

For the past decade or so, Justice Anthony Kennedy has been the most powerful member of the Supreme Court. He has been the crucial swing vote, as his colleagues were often split 4-4. Appointed by President Reagan, Kennedy has usually voted with the conservative justices, but in a few significant cases (on abortion, gay rights, the death penalty and affirmative action), his vote allowed the liberal view to prevail. But in the 19 decisions that were decided 5-4 during the courts most recent session, Kennedy did not side with the liberals even once. On June 27 Justice Kennedy unexpectedly announced his retirement. This gives President Trump his second Supreme Court pick in his first 18 months of office.

The Supreme Court opening has Republicans celebrating the success of Mitch McConnell’s 2016 brazen refusal to let the Senate consider President Obama’s nominee to replace Antonin Scalia. In an attempt to appeal to Republicans, President Obama had nominated Merrick Garland, a middle-aged moderate who had gotten unanimous Senate approval for the judgeship he now holds. Instead, Trump appointed Neal Gorsuch, a younger, very conservative justice from the Federalist Society’s list of approved justices. Gorsuch’s ascension to the court was not seen as apocalyptic because he was replacing the very conservative Scalia, so the overall political makeup of the court did not change. Replacing Kennedy, on the other hand, is significant: Instead of a 4-4 split with a potential swing vote, court will be a solid 5-4 conservative majority. Some have suggested that Justice Roberts will move to the left and become the new swing vote (as he unexpectedly did to preserve the Affordable Care Act), in order to prevent the court from losing touch with the majority view (and therefore losing credibility, which is the source of its power), but this seems unlikely.

When Trump ran for president, his campaign lawyer, Donald McGahn, convinced him to release a list of potential Supreme Court nominees to demonstrate to conservatives (who didn’t trust Trump) that the Supreme Court slot that McConnell was holding open would be filled by a reliable conservative. Leonard Leo, a conservative Catholic activist and the executive vice president of the Federalist Society, helped create the list, which enabled Trump to secure the votes of many skeptical Republicans (and was an important factor in his electoral college victory). For years Leo has worked out of the public eye to help reshape the judiciary along a conservative Catholic model, supporting judges who oppose the changes wrought by an increasingly liberal society, such as abortion and gay marriage. Leo has had major influence on the selection of three existing Supreme Court justices (John Roberts, Samuel Alito and Gorsuch); Brett Kavanaugh will be his fourth.

Democrats, still angry at McConnell’s unprecedented maneuvering to get Gorsuch on the court, are energized to fight Kavanaugh’s nomination. Even before Trump announced his choice, U.S. Sen. Bob Casey, D-Pa., declared that he would oppose any of the nominees Trump was considering. There are two arguments the Democrats can use to justify their opposition: first, since the Republicans prevented Obama from appointing Scalia’s replacement during an election year, the same rule should apply to this seat. The second is that since the Supreme Court may be asked to rule on aspects of the Mueller investigation of President Trump, allowing Trump to appoint a justice is an inherent conflict of interest (he may have to rule on the question of whether Trump can be forced to speak to Mueller, e.g.). But McConnell’s exercise of “the nuclear option” (eliminating the filibuster) for Supreme Court nominees leaves the Democrats little opportunity to resist. The Republicans have the majority they need (though it is slim, 51-48, due to Sen. John McCain’s absence because of his illness).

Because many expect that if Kavanaugh is approved, the conservative majority (ironically, all men) will allow states to severely restrict (or even outlaw) abortion (essentially overturning Roe v Wade), Democrats hope to get two moderate Republican senators (both women, Lisa Murkowski and Susan Collins) who have expressed support for abortion rights to oppose a justice with such views. But these senators seem to be OK with Kavanaugh, and even if they did flip, the Democrats would have to hold on to all of their senators, six of whom are running for re-election in states Trump won. Three (Joe Manchin, D-W.Va., Joe Donnelly D-Ind., and Heidi Heitkamp, D-N.D.) seem particularly susceptible. The political question for these senators (and the Democratic Party, in general) is, “Does opposition to Kavanaugh lose more voters in the center (if there are any left) than failing to oppose Kavanaugh will lose on the left?” Additionally, as the Republicans have proven over the last few decades, there is a benefit from fighting for your cause even in defeat, because it demonstrates where you stand, which builds loyalty among your supporters (and respect from your opponents).

The role of the Senate in confirming Supreme Court justices is vague, a vagueness McConnell exploited when he refused to consider Obama’s nominee. Some argue that the Senate has no right to consider judicial philosophy (or opinions on specific topics), only competence. But the Founders put Senate approval of a court nominee for a reason, to give the Senate a voice in the process, not just a rubber stamp. In a closely divided Senate, it is fair for the minority to only approve a candidate who can attract the support of a majority. If the moderate Republicans adhere to their principles, and the Democrats in swing states have the courage of their convictions, Kavanaugh should not get Senate approval. But that’s a big “if.”

Kent James is an East Washington resident and has degrees in history and policy management from Carnegie Mellon University.